Advocate Ravinder (Advocate/Attorney) 04 September 2017

Discharge petition in ni act.

Learned Advocates,

A case of Sec. 138 of NI Act has been filed on my client for Rs. 3.00 lakhs. In discharge of promissory note the above cheque was given. In the promissory note, my client's wife signed as a witness. The complainant had intentionally implicated my client's wife as Accused No.2. Accused No.1 is my client. The cheque is issued by A1 only and A2 is nowhere concerned to the case. She is only a witness.

I read about Sec. 239 of Cr.P.C--Discharge Petition, but this sec. is not applicable for summons case i.e. NI Act. Sec. 239 is applicable only to Police Cases.

My question is that, is there any provision in NI Act to discharge the Accused No.2 as she is innocent and wrongly implicated.

--Ravinder, Advocate.

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7 Replies

Siddharth Srivastava (Advocate) 04 September 2017

You may argue at the time of framing of charge or maintainability of prosecution u/s.138NI Act.

Siddharth Srivastava (Advocate) 04 September 2017

You may argue at the time of framing of charge or maintainability of prosecution u/s.138NI Act.

Advocate Bhartesh goyal (advocate) 04 September 2017

File quash petition u/s 482 of Cr.P.C before H.C ,on behalf of accused no.2 ( wife ),complaint against wife Will be definitely quashed.

R Trivedi (advocate.dma@gmail.com) 04 September 2017

Sidharth, under S.138, summoning the accused after examining complainant etc under Section.200 CrPC tantamounts to taking cognizance, and once accused is summoned no discharge is possible by magistrate.

R Trivedi (advocate.dma@gmail.com) 04 September 2017

Advocate Goyal has suggested the right mode. If the cheque is issued from your personal saving bank account (not the joint account with your wife and no firm or company account) then your wife cannot be made accused.

Advocate Ravinder (Advocate/Attorney) 04 September 2017

My heartly thanks to all the learned Advocates for giving their valuable information;

In response to Trivedi:

It is not joint account. A2 is nowhere concerned to the case. Just to harass A1 and A2, the complainant had intentionally implicated A2.

In response to Goyal sir:

To my knowledge, Quash is better option I think. Ramesh Singh sir is suggesting Revision. Whether it is ok.

In response Ramesh singh sir:

Kindly explain me where I have to file Revision Petition. Is it in the Session Court or High Court.

R Trivedi (advocate.dma@gmail.com) 05 September 2017

Advocate Ravinder, I am surprised that you being an advocate asking where to file the revision under Section.397 CrPC. Please take the help of a local senior counsel, it should not happen that your client gets compromised due to your lack of experience. Cheque bounce case is very tricky as it involves a very heavy presumption against accused.